The applicants, Mr Bilgin Yılmaz and Mr Burhan
Barım, are Turkish nationals who were born in 1972 and 1968 respectively
and who were serving their prison sentences at the Bergama prision at
the time of the application. They are represented before the Court by
Mrs I.G. Kireçkaya, a lawyer practising in Izmir.

The facts of the case, as submitted by the applicants,
may be summarised as follows.

In connection with an investigation carried out
by the public prosecutor attached to the Izmir State Security Court
against the activities of an illegal organisation, called the Turkish
Revolutionary Communist Union (“TİKB”), policemen from the Anti-terror
branch of the Izmir Security Department raided several houses between
7 and 10 September 1996. The first applicant together with other suspects
was arrested on 7 September 1996 and taken into police custody.

On 9 September 1996 the second applicant was
arrested and taken into police custody by the Anti-terror branch of
the Izmir Security Directorate.

On 19 September 1996 the applicants were brought
before the public prosecutor at the Izmir State Security Court. They
were then brought before the Izmir State Security Court.

Before the court, the first applicant acknowledged
his statements given before the police and the public prosecutor. He
further accepted the contents of the reports of mutual identification
and confrontation of suspects, the seizure reports, finger print report
and expert reports.

Before the court, the second applicant acknowledged
his statements given before the police and the public prosecutor. He
also accepted the contents of the search and seizure protocol drafted
following the search conducted in his house.

The Izmir State Security Court ordered their
detention on remand.

On 22 October 1996 the public prosecutor at the
Izmir State Security Court filed a bill of indictment with the latter
accusing the applicants and fifteen other suspects of membership in
an illegal organisation. He requested that they be convicted and sentenced
under Article 168 § 2 of the Criminal Code and Article 5 of Law no.
3713.

On 25 October 1996 the Izmir State Security Court
commenced the trial against the applicants and fifteen other suspects.

On 4 February 1997 the applicants submitted their
written defence submissions to the court. They claimed that they had
been subjected to various forms of ill-treatment while they were held
in police custody. They further denied their submissions given before
the public prosecutor and the State Security Court on 19 September 1996.
They claimed that they had been threatened by the police officers to
confirm their statements in police custody.

In a hearing held on 18 March 1997 the first
applicant denied the accusations against him. He refuted his earlier
statements given in police custody, before the public prosecutor and
the State Security Court. He also refuted the remainder of the written
evidence against him.

In the same hearing, the second applicant also
refuted his earlier submissions and the other written evidence contained
in the case-file.

On 10 December 1997 the applicants submitted
their final defence submissions where they reiterated their previous
submissions dated 4 February 1997.

On 24 December 1997 the Izmir State Security
Court taking into account the statements of the applicants given before
the police, the public prosecutor and the State Security Court on 19
September 1996, together with other evidence contained in the case-file,
i.e. the reports of mutual identification and confrontation of suspects,
convicted the applicants as charged and sentenced them to twelve years
and six months' imprisonment.

On 24 November 1998 the Court of Cassation held
a hearing and upheld the judgment of the first-instance court. The decision
of the Court of Cassation was pronounced on 2 December 1998.

COMPLAINTS

The applicants maintain that the length of their
detention on remand constituted a breach of Article 5 § 3 of the Convention.

The applicants submit under Article 6 of the
Convention that they did not receive a fair trial by an independent
and impartial tribunal. They contend that the judges sitting on the
bench of the State Security Court cannot be considered as independent
and impartial as the military judge is attached to the Military Service
and the latter attached to the Supreme Council of Judges and Public
Prosecutors. The applicants allege that the court relied on their statements
given under duress in police custody and that it did not take into account
the arguments presented by them in the course of the proceedings. They
further submit that the written opinion of the principal public prosecutor
at the Court of Cassation was never served on them, thus depriving them
of the opportunity to put forward their counter-arguments.

The applicants complain under Article 14 of the
Convention that they were discriminated against since the criminal procedures
and the sentences for the offences tried before the State Security Courts
were different from the offences tried in other courts.

THE LAW

1. The applicants maintain that the length of
their detention on remand constituted a breach of Article 5 § 3 of the
Convention.

In the present case the applicants were arrested
and taken into custody on 7 and 9 September 1996 respectively and were
convicted by the judgment of the Izmir State Security Court of 24 December
1997. On 24 November 1998 the Court of Cassation upheld the judgment
of the Izmir State Security Court. Following 24 December 1997, the applicants
were detained “after conviction by a competent court” and no longer
“for the purpose of bringing her before the competent legal authority”
(see Turan
v. Turkey (dec.), no. 879/02, 27 January 2005). Accordingly, the
period that has to be taken into consideration under Article 5 § 3 of
the Convention started on 7 and 9 September 1996 respectively and ended
on 24 December 1997. As the applicants lodged their application with
the European Court of Human Rights on 23 March 1999, this complaint
has been introduced out of time.

Accordingly, this part of the application should
be rejected for non-compliance with the six-month time limit pursuant
to Article 35 §§ 1 and 4 of the Convention.

2. The applicants complain under Article 6 of
the Convention having regard to the presence of a military judge on
the bench of the Izmir State Security Court. In addition, the applicants
complain that the fairness of the criminal proceedings was also undermined
by other shortcomings.

The Court considers that it cannot on the basis
of the case file, determine the admissibility of these complaints and
that it is therefore necessary, in accordance with Rule 54 § 2 (b)
of the Rules of the Court, to give notice of them to the respondent
Government.

3. The applicants contend under Article 6 of the
Convention that they were not tried by an independent and impartial
tribunal having regard to the fact that the civil judges sitting on
the bench of the Izmir State Security Court are attached to the Supreme
Council of Judges and Public Prosecutors.

The Court reiterates that it has already rejected
similar complaints concerning the issue of the independence and the
impartiality of the civil judges on account of their attachment to the
Supreme Council of Judges and Public Prosecutors (see, among many others, Imrek v. Turkey
(dec.), no. 57175/00, 28 January 2003). The Court finds no particular
circumstances in the instance case which would require it to depart
from its findings in the above-mentioned case.

Consequently, this part of the application is
also manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention and must be rejected pursuant to Article 35 § 4.

4. The applicants complain under Article 14 of
the Convention that they were discriminated against since the criminal
procedures and the sentences for the offences tried before the State
Security Court were different from the offences tried in other courts.

The Court reiterates that Article 14 is not concerned
with all differences of treatment but only with differences having as
their basis or reason a personal characteristic (“status”) by which
persons or group of persons are distinguishable from each other (see Kjeldsen, Busk
Madsen and Pedersen v. Denmark, judgment of 7 December 1976,
Series A no. 23, p. 29, § 56).

In the instant case, the distinction was made
not between different groups of people, but between different types
of offence, according to the legislature's view of their gravity (see,
among many others, mutatis mutandis, Gerger v. Turkey [GC], no. 24919/94, § 69, 8 July 1999 and Kömürcü v.
Turkey (dec.), no. 77432/01, 28 November 2002). The Court sees
no ground for concluding that this practice amounts to a form of “discrimination”
that is contrary to the Convention.

Consequently, this part of the application is
also manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Decides to adjournthe examination of the applicants' complaints concerning their
right to a fair hearing by an independent and impartial tribunal;